296

CONCEALED FRAUD.

chaser for valuable consideration, from which act time would begin to run against you as regards the purchaser, and any person claiming under him. But the trustees themselves may be in danger of being barred; for 20 years' possession by a third person will bar both you and them. Your possession, however, would not be adverse to your trustees; and whilst their right continues, yours is safe.

It would only perplex you if I were to state to you how the law bears upon estates-tail, the nature of which tenancy I have explained to you in my 14th Letter; but I may mention, that if you, as tenant in tail, which you are of part of your property, were to neglect to pursue your claim against a person in possession, without acknowledgment of your title for 20 years, your children and your children's children would be barred as well as yourself. Your neglect would bar them, and indeed would equally bar remainder-men claiming to take after your estate-tail.

Your remedy in equity, where your right is an equitable one, for recovery of the property withheld from you, is placed on the same footing in regard to time as your legal remedies. The distinction, in a general sense, between your legal and equitable interests is, that where an estate is conveyed directly to yourself, you have the legal right to it. Where it is conveyed so as to vest in another the legal right, but in trust for you, you are the equitable owner of your property.

If there is a concealed fraud, the remedy in equity, except as against any bonâ fide purchaser for valuable consideration, without notice, and no party to the fraud, will not be considered to accrue until the fraud shall, or with reasonable diligence might, have been first discovered. This has been explained not to mean the case of

ADMINISTRATOR, ETC.

297

a party entering wrongfully; it means a case of designed fraud, by which a party, knowing to whom the right belongs, conceals the circumstances proving that right, and by means of such concealment enables himself to enter and hold.

I may still observe, that time runs against an administrator from the testator's death. A party relying upon possession cannot avail himself of the possession of a joint-tenant or tenant in common.

As the subject of this and the following Letters will require your best attention, I have thought it desirable, disregarding a scientific arrangement of my observations, to let it find its place at the close of my correspondence.

298

CHARGES BARRED BY TIME.

LETTER XXVIII.*

My last Letter relates to adverse possession of the estate itself, but a limitation has also been put upon proceedings to recover charges on the estate. Neither action nor suit can be brought to recover any money secured by mortgage,† judgment, or lien, or otherwise, charged upon any estate, or any legacy (which, however, extends to legacies although payable out of personal estate only), but within twenty years, unless in the mean time some part of the money or interest has been paid, or some acknowledgment of the right to it shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled to it, or his agent, and in such case the twenty years are to run from the last of such payments or acknowledgments, but the time will not begin to run until next after a present right to receive the money has accrued to some person capable of giving a discharge for it; and this provision has been extended to the personal estate of persons dying intestate.§ The condition annexed to the bar is important: for instance, if you, as tenant for life of your estates, were to pay off a charge upon it, but to take no step to keep it alive, and you were to live more than twenty years after the

* See the note to the last Letter.

In Letter XIV. (on Mortgages), I have stated to you the operation of adverse possession on such securities.

3 & 4 Will. IV., c. 27, s. 40; 19 & 20 Vict., c. 97, s. 10, appears to assume that there are savings in s. 40, 41, and 42 of the 3 & 4 Will. IV., c. 27, which are not to be found there.

§ 23 & 24 Vict., c. 38, s. 13.

ARREARS OF INTEREST.

299

payment, yet the right to the charge would not be barred, for there would be no assignable person liable to pay it in your lifetime, and the rent out of which the interest of the charge was to be paid belonged to you, who were entitled to the interest. You would be both the hand to pay and to receive. Where a judgment is entered upon a post-obit bond, time will not begin to run until after the death of the life on the dropping of which the payment depends.

That part of the statute which requires an acknowledgment in writing to save time running, has received a liberal interpretation in favour of the claimant.

And no

These provisions apply to the principal sums charged. Arrears of dower cannot be recovered for more than six years next before the action or suit.* arrears of rent or of interest of any money charged upon any land, or in respect of any legacy, can be recovered but within six years next after the same became due, or next after an acknowledgment of the same in writing has been given to the person entitled thereto, or his agent, signed by the person entitled thereto or his agent; with an exception, nevertheless, in favour of the creditor, where a prior encumbrancer has been in possession within one year before the action or suit.+

This provision extends to interest on judgments, as well as to interest on mortgages; and if the remedy is barred against the real estate, the bar applies equally to any remedy against the personal estate of the debtor. There is still a further provision under another Act of Parliament, which was passed about the same time as

* 3 & 4 Will. IV., c. 27, s. 41.

+ 3 & 4 Will. IV., c. 27, s. 42.

3 & 4 Will. IV., c. 42. Unfortunately the framers of the two Acts were ignorant of each other's labours; see 16 & 17 Vict., c. 113, s. 20, 23 (Ireland); 19 & 20 Vict., c. 97, s. 14.

300 PAYMENT OF INTEREST BY TENANT FOR LIFE.

the 3 & 4 Will. IV., c. 27, to which I have already so amply referred, and which comes in aid sometimes of the latter statute. It is provided that all actions of debt for rent upon an indenture of demise, and all actions of covenant or debt upon any bond, or other specialty, shall be sued within twenty years after the cause of such actions. It contains savings in case of disabilities, with the nature of which you are already well informed,* and it gives effect to acknowledgments in writing, and part payments of any principal or interest; but it so far differs from a former provision, that although it requires the acknowledgment to be made and signed by the party liable, or his agent, it does not require it to be made to the person entitled, or his agent. But there are some nice distinctions on this head.

Where an estate of a deceased debtor is liable to a bond debt, which binds the heir,+ and the estate is settled on one for life, with remainders over after his death, payment of interest on the bond by the tenant for life, will keep alive the creditor's remedy against the remainder-men after the death of the tenant for life. You will probably think this quite right.

* But 19 & 20 Vict., c. 97, s. 10, takes away the savings for absence abroad and imprisonment.

The lawyer will keep in view the 32 Vict. c. 46.